Colorado Made the Masterpiece Case Easy for the Court

By Robert P. George

Mr. George is a professor and director of the James Madison Program in American Ideals and Institutions at Princeton.

June 4, 2018

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Jack Phillips, owner of Masterpiece Cakeshop in Lakewood, Colo. The Supreme Court decided on Monday that Colorado erred in fining him for refusing to provide a custom cake for the celebration of a gay couple’s marriage.CreditCreditNick Cote for The New York Times

Jack Phillips, the baker who refused to provide cakes for Halloween festivities, divorce parties or events celebrating same-sex relationships has carried the day in the Supreme Court. In the end, the vote wasn’t even close: 7-2.

His case began in 2012, when the Colorado Civil Rights Commission fined Mr. Phillips, saying that he violated the state’s anti-discrimination statute by declining, on the basis of his Christian beliefs, to design a cake that had been requested by a gay couple who were going to be married out of state. (At the time, Colorado defined marriage as the conjugal union of man and a woman.) The commission ruled that he had discriminated on the basis of sexual orientation.

Mr. Phillips insisted that he had done no such thing. He had made clear to the two men who requested the cake that he would happily sell them goods off-the-shelf and that he would design cakes for them for special occasions (birthdays, job promotions, etc.) that did not violate his sincerely held Christian beliefs. But the commission ruled against the baker, and its decision was upheld by the Colorado courts.

On Monday, though, the Supreme Court invalidated the commission’s actions against Mr. Phillips as a violation of his constitutional right to the free exercise of religion. And the commission made the case an easy one for the justices.

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Charlie Craig, left, and David Mullins, the couple who requested the cake, at their home in Denver.CreditNick Cote for The New York Times

The records of its proceedings were filled with statements by members expressing hostility to Christian teachings on marriage and sexual morality and casting aspersions on Mr. Phillips’s faith and motives. Justice Anthony Kennedy, writing for the majority, highlighted these statements as evidence that the commission had violated the First Amendment’s guarantee of the free exercise of religion by failing to make its decision from a position of religious neutrality.

“It hardly requires restating that government has no role in deciding or even suggesting whether the religious ground for Phillips’ conscience-based objection is legitimate or illegitimate,” Justice Kennedy wrote.

Justice Kennedy was joined by the court’s conservative wing and by two of its liberals, Justices Elena Kagan and Stephen Breyer. Only Justices Ruth Bader Ginsburg and Sonia Sotomayor were willing to give the Colorado commission a pass on its explicit anti-Christian animus.

So what does the decision mean? Has the court discovered a constitutional right of business owners and service providers to discriminate on religious grounds against homosexuals or people in same-sex relationships? No. Not a single member of the court drew any such conclusion. Nor did it resolve the bigger question that this case raised: What does the Constitution require when such prohibitions on discrimination conflict with business owners’ religiously informed dictates of conscience?

This much, however, is clear: Business owners and others have no obligation under the Constitution, nor can one be imposed by statute, to confine their religion to the private domain. On the contrary, they have the constitutional right to proclaim and act on their religious beliefs in the public domain, including in the domain of commerce. If you are a Christian (or Jewish, or Muslim, or Hindu) business owner, you may run your business according to your religious principles, subject to legal regulations that are neutral (that is, not rooted in antipathy to your religious beliefs or those of your fellow citizens) and general in their applicability (that is, they apply to everyone equally).

But much remains unresolved. Did the constitutional problem with the commission’s actions derive solely from its members’ motives? Would the fining of Mr. Phillips have been acceptable based purely on a judgment that his refusal to cater same-sex celebrations constituted discrimination based on sexual orientation, and not on the basis of antipathy to Mr. Phillips’s beliefs?

In a concurring opinion, Justice Kagan, joined by Justice Breyer, seems to suppose so. If she’s right, the message to state officials could be taken to be: “Look, guys, of course, you can punish the Christian baker. But just remember not to state your own moral or religious reasons or reveal your antipathy to the target business owner’s moral or religious reasons on the record.”

Justice Neil Gorsuch, in a concurrence joined by Justice Samuel Alito, challenged the Kagan reading of the ruling, noting that the commission had demonstrated its unconstitutional lack of neutrality not merely by the improvident words of some of its members, but even more decisively by ruling in other cases in favor of bakers who refused to bake cakes for religious people who requested them as statements of opposition to homosexual conduct or same-sex partnerships. If Mr. Phillips was guilty of discrimination based on sexual orientation then surely these bakers were no less guilty of discrimination based on religion — another type of discrimination expressly forbidden by the Colorado law.

Finally, there is the issue of free speech — or, rather, the constitutional prohibition of compelled speech. Did the Colorado commission run afoul of the Constitution by attempting to compel Jack Phillips in his role as a custom cake designer to, in effect, engage in artistic expression he did not wish to engage in, and in that way to at least implicitly endorse something he morally opposes?

Because the justices were easily able to award the victory to Mr. Phillips on free exercise of religion grounds, the court didn’t fully grapple with this important issue. Several of the justices noted it, but it remains unresolved.

It doesn’t take a crystal ball to see that it won’t stay that way for long.

Correction:

An earlier version of this article misidentified the justice who joined Justice Neil Gorsuch in a concurring opinion; it was Justice Samuel Alito, not Justice Clarence Thomas. The article also misstated the sequence of events in the case. When the couple visited Mr. Phillips’s shop, they were not yet married; they were planning to marry out of state.

Robert P. George (@McCormickProf) is a professor and director of the James Madison Program in American Ideals and Institutions at Princeton.